CAS 2003/A/507 Marko Strahija v. Fédération Internationale de Natation (FINA)

• Swimming
• Doping (hCG)
• Principle of a fair hearing
• Lex mitior
• Scope of the Panel review
• Integrity and validity of the laboratory testing results
• Burden of proving an abnormal concentration
• Specified substance
• Burden of proving unintentional doping

1. The principle of a fair hearing guarantees not only the parties’ right to be heard by the panel, but also their right to refute the other side’s factual submissions by proffering evidence. However, the principle of a fair hearing does not apply without restriction. Rather it is only guaranteed within the framework of the procedural rules and the orders made to manage the proceedings provided said orders are not arbitrary or impartially detrimental to one of the parties.

2. Under the lex mitior, the sanctions, which are more favourable for the athlete in the most recent DC Rules, must be applied if a doping offence has been committed. As a result, new FINA DC rules entered into force between the alleged doping offence and the hearing of the case are applicable.

3. According to a rule that exists in most legal systems, a complete investigation by an appeal authority, which has the power to hear the case, remedies – in principle – any flaws in the procedure at first instance.

4. An accredited laboratory has complied with the applicable procedural rules when the suitability of the screening method is evidenced by the fact that the laboratory has been awarded the ISO accreditation 17025 for precisely this method of detection. According to Appendix D of the Olympic Movement Anti-Doping Code, a second different immunoassay is required to confirm the findings of the first one. The use of a chemiluminiscent test (“Immulite test”) meets this requirement as it is a different test not only by name but also in terms of its substance; for the two-test procedures look at two different parts of the hCG molecule.

5. The burden of proof lies upon the anti-doping organisation to establish that an offence has been committed. This follows from the language of the doping control provisions as well as general principles of the Swiss Civil Code. Equally, the standard of proof required of the anti-doping organisation is high: it is less than the criminal standard, but more than the ordinary civil standard. Only then has the anti-doping organisation discharged his burden of proof. The discharge of the burden of proof is shattered if there is reasonable doubt (as distinct from the highest fanciful doubt) as to the findings of the laboratory.

6. DC 10.3 (DC Rules 2003) only applies if the substance is marked in the list of prohibited substances as being one that is susceptible to an unintentional anti-doping violation. However, hCG is listed as a “regular” doping substance which is not particularly susceptible to unintentional doping: ingestion of hCG is likely to increase the level of testosterone as well as the ratio of testosterone/epitestosterone. Therefore, in cases in which hCG is proven to be in the body fluids of an athlete, intentional doping is much more likely than unintentional doping. Therefore, DC 10.3 is not applicable to hCG.

7. The burden of submitting and proving unintentional doping lies with the athlete. By merely claiming that he did not take the prohibited substance, the athlete does not make any substantiated submissions on the question of whether hCG is particularly susceptible to unintentional doping. Further, under DC 10.3 the athlete must establish that the use of a specified substance was not intended to enhance sport performance. By merely claiming that he has never used this substance, the athlete has not tried to establish such requirement.

In July 2002 the International Swimming Federation (FINA) has reported an anti-doping rule violation against the Croatian Athlete Marko Strahija after his samples tested positive for the prohibited substance human chorionic gonadotrphin (hCG).

The Athlete already tested positive in March 2002 and to establish a doping offence or a physiological or pathological condition the Athlete underwent two further out-of-competition tests in July 2002. The first sample tested negative however the second A and B samples tested positive for hCG.

On 15 July 2003 the FINA Doping Panel decided to impose a 4 year period of ineligibility on the Athlete including retroactive disqualification of his results achieved by the Athlete between November 2002 and January 2003.

Under new FINA Rules due to the principle of lex mitior the Athlete’s sanction was reduced in September 2003 to a 2 year period of ineligibility with disqualification of his results achieved between November 2002 and 22 January 2002.

Hereafter in August 2003 the Athlete appealed the FINA decision of 15 July 2003 with the Court of Arbitration for Sport (CAS).

The Athlete requested the Panel that:

• He be exonerated and the doping charges against him be dismissed; or
• Alternatively, that if a doping offence must be found, then no suspension be issued, only a warning or a reprimand; or
• In the further alternative, if a doping offence must be found and a suspension should be issued, this suspension be proportionate in relation to the offence and
• taking into account the manner in which this case has been conducted before the FINA Doping Panel as well as the nature of the Prohibited Substance itself consequently be no longer then the time Athlete already served and subsequently to end on December 16, 2003; and that
• The Athlete recovers his costs in this matter, together with fees of counsel.

Considering the Athlete’s arguments the Panel finds that there are no apparent circumstances to indicate that the Barcelona Lab’s measuring procedure was wrong and the Athlete has not made any such substantiated submissions. The Panel concludes that the imposed 2 year period of ineligibility is appropriate and proportional in view of the given facts of the case.

Therefore the Court of Arbitration for Sport decides on 9 February 2004:

1.) The appeal filed by Mr. Strahija on 11 August 2003 is dismissed.

2.) The decision by the FINA Doping Panel dated 15 July 2003 is upheld as amended by the entry into force of the new DC rules on 11 September 2003. Accordingly the period of ineligibility for the Athlete is two (2) years. The suspension shall end upon the expiry of 26 November 2004.

3.) (...).

CAS 2004/A/549 D. & Real Federacion Española de Gimnasia vs FIG

TAS 2004/A/549 D. & Real Federacion Española de Gimnasia (RFEG) c. Fédération Internationale de Gymnastique (FIG)

• Gymnastics
• Doping (cannabis)
• CAS Power to investigate on appeal
• Outcome of procedural faults committed in the first instance
• Principle of non bis in idem
• Principle of lex mitior
• Determination of sanction

1. In accordance with Article R57 of the Code of Sports Arbitration, CAS reviews the facts and law with full power to investigate. This power permits it to hear the parties again as to the total circumstances of facts as well as on the legal arguments they wish to raise and to rule definitively on the case in question. Such a system, where the Panel investigates all the arguments about the facts and law raised by the parties, allows it to consider to purge the possibly procedural faults that have effected the prevous instances.

2. The Athlete has been suspended, on international level from 19 October 2002 until 19 January 2003, and on national level from 28 December 2002 until 28 March 2003, by two sanctions rendered separately.

These two sanctions concern distinct objects, the national or international competitions. Article 1.4 at the end of the FIG Regulations provides a double degree of measures by stipulating that the sanctions decided by the FIG do not prejudge anything that could be inflicted by the IOC, the NOCs or the National Federations.

Accordingly, even if the non bis in idem principle has to be considered applicable, the Athlete can not refer on it, considering that the sanctions imposed on him have a different purpose.

3. In this case, FIG can not be considered late in adopting the WADA Code, as the deadline has not expired. For these reasons, and in particular in view of the specific conditions of the commencement into force of this Code, the Panel finds that it is not applicable in this particular case. For this reason, the principle of lex mitior is not admissible in this scope.

On 21 December 2002 the Disciplinary Committee of the Royal Spanish Gymnastics Federation (RFEG) decided to impose a 3 month period of ineligibility on the Spanish Athlete D. after all his samples tested positive for the prohibited substance Cannabis. D. provided the samples at 3 competitions between October and November 2002 in Spain, France and Hungary while the RFEG annulled his results obtained in Spain.

As a consequence of these violations the Disciplinary Commission of the International Gymnastics Federation (FIG) decided to impose a retroactive 3 month period of ineligibility on the Athlete D., starting on 19 October 2002, including annulation of the results obtained in 3 competitions in France, Hungary and also in Germany.

The RFEG appealed this decisions and on 30 November 2003 the FIG Appeal Tribunal annulled the FIG decision due to procedural faults and referred the case back to the FIG Disciplinary Commission.

Hereafter in December 2003 the RFEG appealed this case with the Court of Arbitration for Sport (CAS).

On 27 May 2004 the Court of Arbitration for Sport decides to annul the FIG Appeal Tribunal decision of 30 November 2003 and to impose a 3 month period of ineligibility on the Athlete D., starting on 19 October 2002, including annulment of his results obtained in the competitions in France, Hungary and Germany.

TAS 2004/A/S64 IAAF c/FFA & Stéphane Desaulty

In July 2003 the Athlete Stéphane Desaulty was arrested for the falsification of medical prescriptions and the purchase of syringes with recombinant human erythropoietin (rhEPO). After his admission he was convicted in November 2003 for 4 months as suspended sanction for forgery.

As a consequence of his admission the French Athletics Federation (FFA) reported an anti-doping rule violation against the Athlete and on 10 December 2003 the Disciplinary Body of the FFA decided to impose a 2 year period of ineligibility on the Athlete with 6 months as suspended sanction.

Hereafter in March 2004 the International Association of Athletics Federations (IAAF) appealed the FFA decision of 10 December 2003 with the Court of Arbitration for Sport (CAS).
The IAAF requested the Panel to annul the FFA decision and to impose a minimum 2 year period of ineligibility due to under the IAAF Rules imposing a suspended sanction is not possible.

The Panel concludes that the IAAF Rules do not allow national federations a margin in imposing their minimum sanctions and rules that a 2 year period of ineligibility must be imposed.

Therefore the Court of Arbitration for Sport decides on 14 September 2004 to annul the FFA decision of 10 December 2003 and to impose a 2 year period of ineligibility on the Athlete starting on the date of the provisional suspension, i.e. on 5 August 2003.

CAS 2004/A/593 Football Association of Wales (FAW) v. Union des Associations Européennes de Football (UEFA)

• Football
• Doping (Bromantan)
• CAS jurisdiction
• Arbitrability of the dispute
• Complicity of the federation or the club

1. A decision, which effect is to permit one of the national football team concerned to compete in the last stages of Euro 2004 has obviously serious financial repercussions. Following a case-by-case approach and taking into account its effects, the disputed decision is predominantly of a pecuniary nature (as opposed to sporting nature) for both parties. According to art. 62 UEFA Statutes, CAS has jurisdiction to hear an appeal filed against a decision of a pecuniary nature.

2. “Implicated” is more than just being “involved”. This technique, applied to art. 12 UEFA DR, leads to the legitimate conclusion that “implicated association” means participation of an association in the voluntary or negligent use of a banned substance or method by a player being aware of his doing so.

3. When there is no evidence that a federation or a club cooperated intentionally or negligently in the use of the banned substance by the Player, the said federation or club cannot be assimilated to an “accomplice or abettor” of player under the terms of the UEFA Disciplinary Regulations and consequently cannot be sanctioned.

In December 2003 the UEFA reported an anti-doping rule violation against the Russian football player Titov after his sample tested positive for the prohibited substance Bromantan.

Consequently the UEFA Control & Disciplinary Body decided on 22 January 2004 to impose:

• a 12 month period of ineligibility on the Athlete and a CHF 10’000.- fine.
• a fine of CHF 20’000.- on FC Spartak Moscow.

In January 2004 the Football Association of Wales (FAW) filed a formal protest at the continued inclusion of Russia in the Euro 2004 finals. Because of Tito's anti-doping rule violation the FAW contended that in accordance with the UEFA Rules the Football Union of Russia (FUR) should be excluded from participation in the Euro 2004 in Portugal and that Wales should be awarded their place in the tournament.

On 3 February 2004 the UEFA Control & Disciplinary Body decided to reject the complaint of the FAW for being unfounded. Thereupon on 1 April 2004 the UEFA Appeals Body ruled that the appeal of the FAW was rejected inasmuch as it was admissible and it confirmed the Control & Disciplinary Body’s decision of 3 February 2004.

Hereafter in April 2004 the FAW appealed the UEFA Appeals Body Decision with the Court of Arbitration for Sport (CAS). The FAW requested the Panel for:

(1) a declaration that the Appealed Decision against is flawed by errors of law and is void and of no effect;

(2) a declaration that on the correct interpretation of the relevant UEFA rules and regulations, the FUR is implicated as an accomplice or abettor of Titov for having fielded a player who had a prohibited substance in his body, irrespective of the fact that the FUR was unaware when the matches in question were played that Titov had a prohibited substance in his body; and

(3) a declaration that on the correct interpretation of the relevant UEFA rules and regulations UEFA‟s disciplinary organs are accordingly empowered to impose on the FUR an appropriate sanction, and UFEA's disciplinary organs are obliged on the basis of the FAW's complaint to consider what sanction to impose within the powers conferred by the relevant rules and regulations.

Following assessment of the case the Panel determines that:

• The decision of the UEFA Appeals Body wasn't flawed by errors of law and was void and of no effect.
• The FUR was not implicated in any asserted doping violation by Titov.
• Without FUR's implication in any doping offence, there is no legal basis for applying a sanction on the FUR.

Therefore on 6 July 2004 the Court of Arbitration for Sport:

1.) Has jurisdiction to hear the appeal filed by the Football Association of Wales on 10 April 2004.

2.) Dismiss the appeal filed by the Football Association of Wales. (…)

CAS 2004/A/607 B. v. International Weightlifting Federation (IWF)

• Weightlifting
• Doping offence
• Manipulation of sample
• Standard of proof
• Sanction

1. When the physical manipulation of the samples is undisputed, a prohibited doping method in the form of manipulation has occurred under Rule 5.1(b) of the IWF Anti-Doping Policy. The result is a doping offence as the alleged breach in the chain of custody, the alleged manipulation occurring during the period of custody and the alleged fact that the athlete has been victim of a conspiracy have not Under Rule 5.1(b) of the IWF Anti-Doping Policy been demonstrated. As a result, the athlete should be suspended according to the applicable rules.

2. As to the standards of proof to establish that an anti-doping violation has occurred, the IWF Anti-Doping Policy remains silent. According to Swiss law, which has been chosen by the parties, the Panel, based on objective criteria, must be convinced of the occurrence of an alleged fact. However, according to the jurisprudence of the Swiss Supreme Court, no absolute assurance is required; it suffices that the Tribunal has no serious doubts on a specific fact or that the remaining doubts appear to be light. This test is in line with standard CAS practice, providing that an anti-doping rule violation must be established to the comfortable satisfaction of the Tribunal. This standard of proof is greater than a mere balance of probability but less than proof beyond a reasonable doubt.

In November 2013 the Bulgarian Weightlifting Federation (BWF) has reported an anti-doping rule violation against the Athlete B and two other athletes for tampering (physical manipulation) after the laboratory had reported that their three samples contained the urine from the same athlete.

The IWF submitted a letter to the BWF on 31 March 2004. The letter stated that following negotiations between the IWF and the BWF, the parties agreed to reduce the Athlete’s sanction from a life time ban to eight years and the other athletes’ suspensions from a two year ban to 18 months.

This compromise was accepted by the Board of the IWF to avoid a long-lasting and expensive legal process if the athletes appealed. The letter also indicated that the BWF would have
to pay a fine of USD 60,000, of which USD 30,000 had already been paid, because the BWF had three doping offences within one calendar year.

On 13 April 2004, the Athlete sent to the Executive Board of the IWF a statement in which he refused the 8 year suspension and hereafter he appealed the IWF decision with the Court of Arbitration for Sport (CAS).

A rigorous analysis of the events surrounding the sample collection phase leads to the Panel's conclusion that the conditions under which the test took place were not satisfactory and offered several opportunities for the Athlete and the other two athletes to engage in manipulation.

The Panel concludes that the Athlete had the motive and the opportunity to manipulate the sample himself or with the assistance of others. The Panel is comfortably satisfied that the IWF has demonstrated that the Athlete did manipulate the sample himself or with the assistance of others.

Therefore on 6 December 2004 the Court of Arbitration for Sport decides:

1.) The appeal of Athlete B. against the decision issued on 31 March 2004 by the International Weightlifting Federation is dismissed.

2.) The decision issued by the International Weightlifting Federation on 31 March 2004 concerning the Athlete B. is upheld.

(…)

CAS 2004/A/628 International Association of Athletics Federations (IAAF) v. USA Track & Field (USATF) & Y.

Related case:

CAS 2004/A/725 USOC & IAAF vs Michael Johnson, Antonio Pettigrew, Angelo Taylor, Alvin Harrison, Calvin Harrison

• Athletics
• Doping (nandrolone)
• Jurisdiction of the IAAF
• Arbitration Panel to review a decision made by a national body Sanction

1. Pursuant to its own confidentiality rules then in effect, USATF did not notify the IAAF of the positive doping test so as to enable the IAAF to bring the matter before its Arbitration Panel. In those special circumstances, it is fair and reasonable for the CAS to accept the jurisdiction of the IAAF Arbitration Panel to review a decision made by a national body outside the time limit defined by the International Federation Rule (IAAF Rule 21.1 applicable in 2000-2001), given the fact that the IAAF was effectively disabled from reviewing the Appellant’s case until it had seen a copy of the decision challenged and also considering that the IAAF acted prudently in seeking disclosure of that decision before referring the Appellant’s case to arbitration.

2. It would be appropriate to apply the 1999-2000 Rules to the question of the sanction to be applied to the athlete. The consequence of this finding is that the athlete should not have been eligible to compete in any competition during that period, including the Olympic Summer Games in Sydney in 2000 and that the other members of the United States relay team would inevitably lose their Gold Medals. However, it is a matter for the IOC and/or the IAAF to consider, and not for the CAS.

On 11 March 2000 the USATF Doping Hearing Panel sanctioned the Athlete Jerome Young after his A and B samples tested positive for the prohibited substance 19-norandrosterone (Nandrolone).

However the USATF Doping Appeals Board (DAB) exonerated the Athltete on 10 July 2000. The DAB found that the fact of the negative test results produced in six days after the sample in this case was taken raised a reasonable doubt as to whether a violation had been committed.

On 27 August 2003 the Los Angeles Times revealed that Jerome Young was the athlete who had competed in Sydney 2000 Olympic Games following a positive test. Shortly afterwards, on 29 August 2003, Young himself confirmed in the media that he had tested positive in June 1999 but that he had subsequently been exonerated of a doping violation.

This was the first time that Young had been identified. On 28 August 2003, the IOC wrote to the IAAF, USOC and WADA requesting information on Young’s case. On 29 August 2003 WADA wrote to the IAAF demanding that it take action in the light of the new information.

After delibarations between the parties about this case the matter was referrred to the Court of Arbitration for Sport (CAS) and the Panel received voluminous pleadings from the parties about the two issues that it has to decide.

Issue 1) “Pursuant to IAAF Rule 21.1 in IAAF Handbook 2000-2001, would it be fair and reasonable for a Panel in the position of the IAAF Arbitration Panel to accept jurisdiction in this case outside the six month deadline?”

Issue (2) “Did the USATF Doping Appeals Board misdirect itself or otherwise reach an erroneous conclusion on 10 July 2000 when it exonerated Young of a Doping Offence?”

On 28 June 2004 the Court of Arbitration for Sport decides that:

1.) In respect of Issue 1, the answer is that it is fair and reasonable for it to accept jurisdiction outside the six month time limit.

2.) In respect of Issue 2, the answer is that the Doping Appeals Board did misdirect itself and reach an erroneous conclusion when it exonerated Young.

(…).

CAS 2004/A/633 IAAF v/ FFA & Mr Chouki

In September 2003 the International Association of Athletics Federations (IAAF) reported an anti-doping rule violation against the French Athlete Fouad Chouki after his A and B samples tested positive for prohibited substance recombinant human erythropoietin (rhEPO) in a high concentration.

On 8 October 2003 the Disciplinary Body of the French Athletics Federation (FFA) decided to impose a 2 year period of ineligibility on the Athlete. The Athlete appealed the decision and on 26 November 2003 the FFA Disciplinary Body of Appeals decided to reform the decision and to impose on the Athlete a 2 year period of ineligibility with 6 months as a suspended sanction. On 31 December 2003 the Tribunal Administratif of Strasbourg rejected the Athlete’s application for an interim order suspending the decision of the FFA’s Appeals Body.

Hereafter in June 2004 both the Athlete and the IAAF filed their appeals with the Court of Aribitration for Sport (CAS).
The IAAF requested the Panel to impose a minimum 2 year period of ineligibility for the use of rhEPO. The IAAF contended that several issues occurred relating to deficiencies in the handling of the anti-doping controls during the world championships in Paris where the Athlete was tested. In case such deficiencies are proven to be well founded, they should affect the application of the sanctions under the IAAF rules.

The Athlete claimed that he was involuntarily injected with rhEPO, as he was unwell and semi-unconscious, after the race in Paris. To support his position, he explained that, while he was transported to the medical centre, he was surrounded by people and felt his veins to be tampered with. At the medical centre, he advised that he was indeed injected (as mentioned in the doping control form) and/or had a perfusion placed in his arm according to a witness.

The Panel finds that the Athlete’s explanations are inconsistent with the declarations made in his proceedings. The Athlete did not establish nor make plausible that he had been injected with EPO during the analysed segment of time. He did not give any credible explanation on how nor when the administration of rhEPO could have occurred.

Based on the totality of the evidence, the Panel concludes that it has been proven beyond reasonable doubt by the IAAF that Mr Fouad Chouki committed a doping offence prohibited by the applicable IAAF Rules and must take responsibility for it.

Therefor the Court of Arbitration for Sport decides on 5 April 2005 that:

1.) The appeal filed by the International Association of Athletics Federations on 11 June 2004 is upheld.

2.) The appealed decision issued on 26 November 2003 by the FFA's Disciplinary Body of Appeals ("L'organe disciplinaire d'appel") is set aside.

3.) Mr Fouad Chouki shall be declared ineligible for two years from 19 September 2003.

4.) All other motions or prayers for relief are dismissed.

5.) The Award is pronounced without costs, except for the court office fee of CHF 500 (five hundred Swiss Francs) paid by IAAF which is kept by the CAS.

CAS 2004/A/651 Mark French vs Australian Sports Commission & Cycling Australia

• Appeal Partial Award
  July 11, 2005
• Interlocutory Award
  January 31, 2005
• Interlocutory Award
  March 30, 2005

In December 2003 cleaners found in the guesthouse room previously occupied by the Australian cyclist Mark French a plastic bag of used syringes and needles in the cupboard and a bucket of the sort which normally contained protein powder, also containing used syringes and needles. This discovery was followed by an investigation conducted by the Australian Sports Commission (ASC) and Cycling Australia (CA).

Consequently in February 2004 the ASC and the CA reported anti-doping rule violations against the Athlete for:

(1) Trafficking in a prohibited substance, namely Glucocorticosteroid;

(2) Trafficking in a prohibited substance, namely equine growth hormone (eGH);

(3) Knowingly assisting a doping offence, namely assisting in trafficking glucocorticosteroid by others; and,

(4) Knowingly assisting a doping offence, namely assisting in trafficking equine growth hormone by others.

In the matter of trafficking the substance Glucocorticosteroid and equine Growth Hormone (eGH) the Court of Arbitration for Sport (CAS) Oceania Registry decided on 8 June 2004 to impose a 2 year period of ineligibility on the Athlete and a A$ 1,000 fine.

In the Final Arbitration Award the Athlete was further ordered to:

(1) return to the ASC a trek road bike;
(2) pay the ASC the sum of A$12,031.37 for the financial assistance they provided to the Athlete; and
(3) pay the sum of A$20,000 to the ASC towards the costs of their proceedings.

Hereafter in June 2004 the Athlete appealed the first instance decision of with CAS.

In this case the scope of the appeal became controversial between the parties. The Panel was unable to deal with that controversy until it was reconstituted in late January of 2005. The Panel issued two interlocutory rulings dated 31 January 2005 and 30 March 2005 in which the Panel interpreted the CAS Code and prescribed the scope of this appeal.

By the interlocutory rulings the ASC and CA were permitted to file a cross-appeal against the finding of the Arbitrator at first instance that the Athlete did not breach CA Anti-Doping Policy by committing a Doping offence by using eGH. The finding was that the particular was not proven or accepted. The cross-appeal of the ASC and CA relates to this single particular.

Through the interlocutory rulings, all parties were able to file new evidence before the Panel in the rehearing and cross-appeal that had not been called at the first instance. The Athlete and the ASC and CA both filed extensive new evidence before the Panel.

The Athlete admitted to injecting himself with vitamins, supplements and the product Testicomp but denied injecting eGH. He admitted to injecting these substances in the company of other athletes but testified and stated that he was unaware of any athlete, who was present with him injecting eGH.

The Panel finds that this Athlete’s admission of Testicomp does not amount to an admission that there has been use of a prohibitied substance due to the product Testicomp was tested negative for the presence of a prohibited substance. As a result the Panel can’t find that a breach of the CA Anti-Doping Policy has occurred and that all allegations in the matter of Testicomp are dismissed as not established.

The Panel concludes that the scientific evidence does not demonstrate to the necessary degree of satisfaction the Athlete’s use of eGH and thereby breached the CA Anti-Doping Policy.

In the matter of trafficking eGH the Panel holds that the evidence in this case establish, unlike to the substance Testicomp, that there is evidence that the phials found in the bucket contained a prohibited substance, i.e. eGH, and it is being undisputed that the substance is a prohibited substance under the CA and UCI Anti-Doping Rules.

Further the Panel finds that not has been established that the requisite significant degree of satisfaction of proof that the Athlete knew he was in possession of eGH. In the absence of that knowledge the allegation of trafficking in eGH cannot be upheld nor the allegations for aiding & abetting. Finally the Panel is unable to uphold the conclusions of the Arbitrator in first instance.

Therefore the Court of Arbitration for Sport decides on 11 July 2005 that:

1.) The decision of Arbitrator Holmes QC at first instance be set aside and replaced with this decision of the Appeal Panel. As a consequence the two year period of ineligibility imposed as a sanction is terminated immediately. As a further consequence the fine of A$1,000 Australian dollars ordered to be paid at first instance is to be returned to French within one week of the date herein.

2.) The first instance order to return the trek bike and A$12,031.37 by way of an athlete scholarship are to be included in the written submission referred to in order number four below.

3.) This being an appeal procedure this award is public under CAS Rule 59 unless the parties agree otherwise; and

4.) Costs associated with the first instance decision; the interlocutory proceedings; and this appeal by rehearing and cross-appeal will be considered but on the principles of CAS international and the CAS Rule 65. Counsel are directed to make a written submission not exceeding 10 pages double spaced as to their costs and the matters referred to in order number two above within 15 days of this award.

5.) The Court office filing fees paid by the ASC and by CA at first instance and the filing fee paid by the Appellant French each in the amount of A$500 are retained by CAS.